## Facts

- Two veterans, A.Z. and A.Y., sought VA disability compensation for PTSD allegedly caused by in-service sexual assaults.
- Neither claimant reported the alleged assaults to military authorities during service.
- Their service records contained no documentation of the alleged assaults.
- VA regional offices denied the claims; the Board of Veterans’ Appeals affirmed.
- The Board treated (i) the absence of service-record documentation and (ii) the veterans’ failure to report as evidence weighing against whether the assaults occurred; in A.Z.’s case, the Board also discounted supportive lay statements partly due to the lack of service-record documentation.
- The Court of Appeals for Veterans Claims affirmed, also relying on the absence of a report and the failure to report as probative against the claims.
- The Federal Circuit consolidated the appeals to resolve the common evidentiary question in MST-based PTSD claims.

## Issues

1. Whether adjudicators may treat the absence of a service record documenting an unreported in-service sexual assault as pertinent evidence that the assault did not occur.
2. Whether adjudicators may treat a veteran’s failure to report an in-service sexual assault to military authorities as pertinent evidence that the assault did not occur.

## Decision

- The Federal Circuit vacated the Veterans Court’s judgments and remanded.
- The court held that the absence of a service record documenting an unreported sexual assault is not pertinent evidence that the assault did not occur.
- The court held that a veteran’s failure to report an in-service sexual assault to military authorities is not pertinent evidence that the assault did not occur.
- The court directed reconsideration of the claims without drawing negative inferences from the lack of an official report or from nonreporting.

## Legal Principles

- Under 38 C.F.R. § 3.304(f)(5), PTSD claims based on personal assault may be corroborated by sources other than service records, including behavioral changes and other indirect markers.
- When an event is of a type that is frequently unreported, silence in service records regarding an unreported event is not probative evidence that the event did not occur.
- A claimant’s failure to report an in-service sexual assault cannot be used as negative evidence against occurrence in MST-related PTSD adjudications.
- The holding does not compel an award of benefits; it limits what may be treated as probative negative evidence and requires evaluation of other corroborative evidence under the proper standard.

## Conclusion

The Federal Circuit required VA and the Veterans Court to stop using nonreporting and the absence of service-record documentation of unreported sexual assaults as negative evidence in MST-based PTSD claims, and to reassess such claims using the broader corroboration methods contemplated by VA regulation.


A.Z. v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013)